~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Category Archives: Guest Post

Cyberbullying in Kenya is an issue that can no longer be ignored. In the digital age, some argue that not enough attention is given to this issue, until social media users who are victims of cyberbulling end up hurting themselves or even taking their own lives. In the fight against all forms of cybercrime including cyber-bullying, Kenya has been working on the Computer and Cybercrimes Bill of 2016 which was enacted in April 2017. An overview of the Bill was published previously on this blog here.

The era of digitisation has ushered in the development of many new technologies that have improved the way in which business is undertaken. One such improvement is in the area of data. Data-driven companies are likely to be the most competitive in this current era. This has attracted efforts from the government and private sector in collecting and sharing data from various sectors. There is a lot of personally identifiable information that is collected and archived in data stores; all of which is taking place in a regulatory environment devoid of a national data protection law.

Recently, one of the local dailies had the following headline emblazoned upon it, “Tycoon gifted Sh5bn mobile phone license…” This story related to Communications Authority of Kenya (CA) granting a Network Facilities Provider Tier 1 License to Jamii Telecommunications Limited (JTL). The holder of this license is permitted to build and commercially operate telecommunication/electronic communications systems. According to media reports however, the amount paid by JTL was well below the full value of the license (stated by the press to be 5 billion Kenya Shillings). The media report goes on to relate that the amount that JTL paid was only 100,000 Kenya Shillings.

The introduction of an e-payment system for the public service vehicles (PSVs) in the transport sector has been an idea embraced by some, for reasons that implementation of such a system could greatly help regulate the matatu industry, including eliminating corruption and facilitating collection of taxes. However, others have been opposed to a cashless system for reasons such as loss of income to matatu crews since no e-ticketing system would be able to take into consideration the informal and ad-hoc revenue-share arrangements between the PSV owners and their crews.

Intellectual Property (IP) scholars Kal Raustiala and Christopher Sprigman coined the term “Intellectual Property’s Negative Space” as encompassing any “substantial area of creativity” in which IP laws do not penetrate or provide only very limited protection. This concept is premised on art’s negative space, which refers to the area surrounding a figure that makes it stand out: the background against which an object exists.

The Internet, as a ubiquitous platform, was founded on the principles of openness, participation and collaborative development. ‘Openness’ in this context refers to the policies and procedures that allow Internet users to make free and autonomous choices on the online services and content that they use and create. Openness is cited as having been similarly fundamental to the development of world’s most popular reference tool, Wikipedia. For example, some observers point to Wikipedia’s slogan “the free encyclopedia that anyone can edit” as evidence of this openness.

In recent weeks, Kenya’s sports scene has experienced a unique flurry in activity with sponsorship deals, marketing arrangements and other forms of agreements being struck. This evidently points to an awakening among corporates towards the lucrative relationship that association with successful sporting brands can bring. In all this, however, the place of the individual athlete is rarely cast under the spotlight. This, with the Rio 2016 Olympic Games now upon us, is worth revisiting.

It is curious that even with the proven pedigree of the Kenyan athlete in various disciplines, most of them still live off the proceeds of one sporting event after the other. This can be contrasted against comparable sport-stars who have benefitted from the corporate desire to be associated with the pedigree athlete brand and image. In Kenya, this arguably has been occasioned by two factors: lack of awareness of image rights and an inadequate legal framework thereto.

The terms and conditions of most social media sites stipulate that the users reserve the right to determine who has access to the content they upload. Therefore the extent of access depends on the privacy settings and the services that the user installs.

However, with the social media era came the screenshot functionality that allows one to take an image of the display on the phone or its pre-existing print screen. The functionality allows users of the social media platform to obtain the image uploaded by another user without permission. Which brings the question, are we undermining the creative works that the law protects by downplaying the screenshot copyright infringement on social media?

We live in a day and age where our lives and our social media accounts share an intricate connection. A lot of information about us (individually) such as where we live, where we work, and even where we are at the moment can be found out via the click of a button. Some of this information is quite personal, and if it falls into the hands of the wrong person(s), it can have a detrimental effect on our lives.